~ The Legislative Blog of the NJ League of Municipalities

OPRA and OPMA Bills Amended

At their June 29 meeting, the Senate Budget and Appropriations Committee amended and released without recommendation, S-1045, which amends the Open Public Meetings Act, and S-1046, which amends the Open Public Records Act. The bills now await consideration by the full Senate, although we do not expect a vote until after the November election. The Assembly companion legislation is referenced to the Assembly Judiciary Committee and has not advanced.

Unfortunately, the League and others were unable to testify in opposition to the bills at the June 29 hearing. While we did present detailed written comments on the bills, no verbal testimony was taken from anyone other than the bill’s sponsor. During her remarks, Senator Weinberg noted that she had sent a letter to all the Mayors in the State and only heard back from one Mayor expressing concerns with the proposed legislation. If you have not already done so, we strongly suggest that you contact Senator Weinberg expressing your concerns with the proposed legislation.

The amendments to the Open Public Records Act (OPRA) bill include provisions, which:

Change the requirements on petitions for a protection order to limit the number of and scope of requests, as follows:

Requires a filed verified petition to the Superior Court instead of an appearance before Superior Court.

Must allege that the requestor has sought records, under OPRA, for the sole purpose to harass a public agency.

Add language that permits the governing body to enter into an agreement with a volunteer fire company or volunteer fire department so the municipal clerk can serve as the records custodian for the volunteer fire company/department.

Amend the alarm system exemption in OPRA to only private alarm systems and surveillance cameras.

Add “an intern and volunteer employee” to the definition of Public Employee.

Remove the language that exempted from OPRA the disclosure of personal identifying information of persons under the age of 18.

Remove the address of record provision of the bill which would have permitted an individual to provide an address other than their home address for disclosure purposes.

Add the award of any contract to “advisory, consultative or deliberative material” definition. As a result, material that is used and relied upon during the consultative process prior to the completion of a competitive application, the award of any contract, or adoption of an ordinance, rule, regulation…..would be considered “advisory, consultative, or deliberative” and exempt from OPRA.

Add e-mail addresses provided to the public agency as contact information on any official government form as an exemption to OPRA

Add EZ pass records (or substantially similar) to the definition of public record thereby making it subject to OPRA. However, law enforcement usage of EZ pass would be exempt.

Change requirements for redaction of records, as follows:

Permits the records custodian to provide a certified statement instead of an affidavit.

Requires the custodian to redact information by deleting or obscuring only that information; while not altering, in any manner, the space in the government record formerly occupied by such redacted information.

Amend the provision that allows the records custodian to direct the requestor to the public agency’s website where the records can be found and deem the request to be fulfilled. The language amended requires the requestor, within 7 business days, to “respond to the records custodian with specificity” that they prefer to purchase copies rather than “advising the requestor”.

Add the requirement that the public agency which maintains a government record in a format or medium that can be inspected without charge to the requestor to:

Inform the requestor of the place and time that the record will be available for inspection in such format or medium;

Permit the requestor to purchase copies of such records, at the requestor’s option; and

Allow the requestor 7 business days to respond to the custodian, specifying that they prefer to purchase the copies, otherwise the request may be deemed fulfilled.

When the request is a commercial request:

The public agency may charge, in addition to the actual cost of duplicating the record, a special administrative charge;

A special administrative charge shall be reasonable and related to ongoing operational expense and shall be for expenditures eligible for inclusion;

GRC is to establish the criteria and parameter for expenditures eligible for inclusion; and

The commercial requestor must certify to the fact that the request is for commercial use.

The public agency may require a requester to state whether the requested records are for a commercial purpose

However, the public agency shall not require the requestor to provide the exact purpose of the commercial request

Provide that a Municipal records custodian:

May direct any officer or employee of that municipality having custody of the record to act on the records custodian behalf and make the record available for inspection, examination, copying, or purchase of copies.

However, such direction does not relieve the records custodian of any responsibility under OPRA.

Amend the composition of the Government Records Council, as follows:

1 person who has experience with the news media (instead of 2).

1 person who is a member of the Municipal Clerks Association (instead of a person who has experience with powers, functions or duties of a municipal clerk).

1 person who is a member of the New Jersey Press Association.

The person with experience in State government must have experience as public records custodian.

The amendments to the Open Public Meetings Act (OPMA) bill include the following:

An amended definition of Agenda, which would:

Remove the language “for which notice was given 48 hours prior to the meeting”. Instead, the bill states “no public body shall act upon a matter that is not listed on the agenda.” Please note, the bill still permits the adding on an agenda item after the agenda becomes available, if a majority votes that the item is “of such urgency and importance that a delay for the purpose of providing adequate notice would likely result in substantial harm to the public interest” and the minutes must include the reason why it was added, not on the original agenda, and why delaying action would result in substantial harm to the public.

Remove the requirement to simultaneously make available any government record that is an attachment, appendix, or other documents on the public body’s website.

Add a requirement that the agenda must include a statement that an attachment, appendix or other documents that are a government record is available for inspection, copying or purchase of copies. If such a request is received at least 24 hours prior to the meeting, the records custodian must send an electronic copy of the government record. If such a request is received within 24 hours of a meeting, the documents must be made available to the requestor at the meeting of the public body.

The timeframe, in which minutes must be made available to the public, would be changed from 60 days after the meeting to “15 days after the next meeting of the public body occurring after the meeting for which the minutes were prepared.” The bill still includes the language with the exception of closed session matters.

Removal of the requirement to include copies of any electronic communications that may take place during a public meeting. Instead, the electronic communication must be filed with the municipal clerk for a period of time determined by the State Records Committee to “permit their use in litigation, to enforce the provisions of the Open Public Meetings Act, or for public access”.

Changes to the requirements for posting minutes on the municipal website. Municipalities will still be required to post their minutes, except closed session. However, a statement that the closed session minutes are available upon request if those minutes have been deemed a government record pursuant to OPRA.

An added requirement that reports of the subcommittees be open to the public in the same manner as minutes.

As a result of the amendments, the League has the following new concerns with the legislation:

Protection Order: The bill changes the requirements of a records custodian or public agency seeking a protective order limiting the number of and scope of the request. The new language requires that the public agency/custodian allege that the requestor has sought records for the sole purpose to harass a public agency. This threshold makes this provision a ‘toothless tiger’ and will never be met.

Expand the definition of public employee:The bill would expand the definition of public employee to include interns and volunteers. This provision is too broad, unnecessary, and otherwise ambiguous. Currently, any work product of an intern is subject to OPRA under the definition of a government record. However, we question who will fall under the definition of volunteer. For example, is it the member of the volunteer first aid squad that is a non-profit or the Little League football coach to be considered a public employee?

Exemption of alarm systems and surveillance cameras: The bill would limit the disclosure of information, including location, of alarm systems and surveillance cameras to private systems only. As a result, publicly owned alarm system and surveillance camera information, including location, would be subject to disclosure under OPRA. The League is concerned regarding security and privacy issues that may arise as a result of public disclosure of the location of the publicly owned alarm systems and surveillance cameras.

Release of Minutes: The bill would require that minutes be made available as soon as possible, but no later than 15 days after the next meeting of the public body occurring after the meeting for which the minutes were prepared. The League appreciates the intent of this provision, however, this mandated requirement will be challenging in smaller municipalities and in municipalities with limited resources.

Municipal Clerks as Volunteer Fire Company Records Custodian: The bill would permit a municipality to enter into an agreement with its volunteer fire company/department where the municipal clerk would serve as the records custodian for the volunteer fire company/department. Significant implementation and practical issues could arise from this well-intended provision. By their very definition, most volunteer fire companies/departments are independent of the municipality. They have their own headquarters, leadership, and policies and procedures. How will the records custodian be able to ascertain if a record exists or access the records?

The League continues to be concerned with the following outstanding issues:

Subcommittees: The definition of subcommittees has been changed to “any subordinate committee of a public body, except the Legislature, regardless of label, that is formally created by that body, comprised of two or more members, but less than a quorum, of the public body, and recognized by the public body as a subcommittee thereof.” Subcommittees would be required to prepare at least quarterly reports of their meetings that must include; the number of meetings held since the last report, the names of members of the subcommittee, and a concise statement of the matters discussed. Every subcommittee must file at least one report with the public body. A subcommittee report is available for public access in the same manner as minutes of a meeting of the public body. If the subcommittee has given an oral report at a meeting of the public body, then they are not required to submit the written report for that quarter. The public body must determine if a subcommittee meeting is open to the public. If the meeting is open to the public, adequate notice must be provided. The purpose of subcommittees is to make recommendations to the governing body for the governing body to take action. Subcommittees are designed to digest and vet information informally. Subcommittees do not expend public funds nor make binding decisions. That power remains with the governing body. Therefore, they should not be subject to the provisions of the Open Public Meetings Act. Please note that Senator Weinberg strongly believes the language in the bill permits the governing body to make a subcommittee open to the public but does not mandate the requirement. We respectfully disagree.

Prevailing Attorney Fees: The OPRA bill continues to mandate prevailing attorney fees for violation of OPRA, and the OPMA bill is changing prevailing attorney fees from permissive to mandatory. The Courts and the Government Records Council need the flexibility to award reasonable attorney’s fees based on the given circumstances of a particular case. The inherent ambiguities of OPRA often times require clarity which can only be achieved through the GRC. The cost for clarifying these ambiguities is more often than not bore entirely by municipalities and property taxpayers.

Expands the definition of Government Records: The bill expands the definition of government record to include a record that is “required by law to be made, maintained or kept on file.” Currently, if an OPRA request is received for a document that does not exist, the OPRA request is denied and there is no violation of OPRA. By expanding the definition, a Records Custodian will be in violation of OPRA if the record was required to be made (e.g. an old municipal budget) but they are unable to locate the archived record. The bill does provide protections to limit the record custodian liability, but the Records Custodian will still be in violation of OPRA.

Exemption of the Legislature: Both bills continue to exempt the Legislature from many requirements of the Open Public Meetings Act and all of the requirements of the Open Public Records Act. In the interest of transparency and openness, the various exceptions in the Open Public Meetings Act and Open Public Records Act that applies to the Legislature should be removed. The rules that the legislation makes applicable to other governmental bodies should apply equally to all governmental levels and officials.

The League remains concerned with the legislation’s impact on daily operations, staff time and resources, with the subcommittee language, with the continued exemption of the Legislature, and with a municipality’s increased exposure to liability and frivolous lawsuits.

We ask you to carefully consider the impact that these bills would have on municipal operations and budgets. Based on those considerations, please contact your State Legislators, urging them to oppose S-1045 and S-1046.